(HC) Johnson v. Chappell, No. 2:2014cv01506 - Document 4 (E.D. Cal. 2014)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/9/2014 GRANTING petitioner's 2 motion to proceed IFP; and the Clerk shall assign a district judge to this action; and RECOMMENDING that the petition be dismissed for lack of jurisdiction; and this case be closed. Assigned and Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER JOHNSON, 12 13 14 No. 2:14-cv-1506 CKD P Petitioner, v. ORDER AND KEVIN CHAPPELL, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se with an application for writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 21 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 22 U.S.C. § 1915(a). 23 Petitioner challenges his 2002 conviction in the Sacramento County Superior Court for 24 attempted murder, residential burglary, assault, and related charges. (ECF No. 1.) The court has 25 examined its records and finds that petitioner challenged this same conviction in an earlier habeas 26 petition, Johnson v. Evans, 2:05-cv-1223 JAM DAD (E.D. Cal.), which was denied on the merits 27 on February 4, 2010. 28 1 1 A petition is second or successive if it makes “claims contesting the same custody 2 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 3 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147, 153 4 (2007). Before filing a second or successive petition in district court, a petitioner must obtain 5 from the appellate court “an order authorizing the district court to consider the application.” 28 6 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without 7 jurisdiction to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As 8 petitioner offers no evidence that the appellate court has authorized this court to consider a second 9 or successive petition challenging his 2002 conviction, this action should be dismissed for lack of 10 jurisdiction. 11 Accordingly, IT IS HEREBY ORDERED THAT: 12 1. 13 2. The Clerk of Court shall assign a district judge to this action. 14 IT IS HEREBY RECOMMENDED THAT: 15 1. The petition be dismissed for lack of jurisdiction; and 16 2. This case be closed. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, petitioner may file written 20 objections with the court. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 23 Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: July 9, 2014 Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is granted. _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 / john1506.succ_fr 2
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